1416388 (Migration)

1416388 (Migration) [2016] AATA 3800 (27 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LUCRETIA LIGHTING P/L
CASE NUMBER:  1416388
DIBP REFERENCE(S):  BCC2014/1483721
MEMBER:Adrian Ho
DATE:27 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 27 April 2016 at 4:50pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 September 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 17 June 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) on the basis that the position was not genuine.
A representative of the applicant company appeared before the Tribunal on 19 April 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
The Tribunal is satisfied that the applicant company has nominated an occupation under s.140GB(1)(b) (r.2.73(1A)(a)) and has identified the person proposed to work in the occupation as a proposed applicant for a Subclass 457 visa (r.2.73(1A)(b) and r.2.72(5) in relation to r.2.73(4A)(a)).
The tribunal is satisfied the applicant has provided the name of the occupation, the corresponding ANZSCO code, and the location at which the occupation will be carried out: r.272(8A) in relation to r.2.73(4A)(a).
The Tribunal finds that the applicant has made the application in accordance with the approved internet form and paid the fee prescribed at the time of application (r.2.73(3),(5)&(9)).
The tribunal accepts the applicant is a standard business sponsor and lawfully operates a business in Australia.
On the basis of the nomination form the Tribunal is satisfied that the nominating employer has provided the necessary certifications required by r.2.72(10)(e) (regarding tasks, qualifications and experience).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
Based on the Department “Sponsorship Approval Notice” and Department records, the tribunal accepts the applicant is a standard business sponsor and meets r. 2.72(4).
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
The proposed visa holder is identified in the nomination application and r.2.72(5) is met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
In this case, by reference to ‘movement records’, the proposed visa holder was not and is not the holder of a Subclass 457 visa and therefore the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and
·the location(s) at which the nominated occupation is to be carried out.
The applicant indicated in the nomination applicant that the nominated occupation was that of Customer Service Manager (ANZSCO 149212). The application includes the location at which the occupation will be carried out.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57(2) and (3).
There is no evidence before me to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about either the applicant or an 'associated person'.
For these reasons I am satisfied that the requirements of r.2.72(9) are met.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The Tribunal is satisfied that the applicant is a standard business sponsor and that the nominated occupation and its corresponding ANZSCO code are relevantly specified in IMMI 15/092.
The instrument does not require that the nomination be supported in writing by a specified organisation.
For these reasons the requirements of r.2.72(10)(aa) are met and the requirements of r.2.72(10)(b) are not applicable.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location (Australian equivalent), the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 09/113: r.2.72(10)(AB). The annual earnings specified are AUD 180000.
The contract specifies a salary of $5399 a year. The director gave evidence that the salary has been raised to $55000 per year, and given that submitted payroll data reveals a salary of $56000, the tribunal accepts that the actual salary is in this vicinity.
The tribunal has consulted Payscale.com (PayScale) which suggests that for a customer service manager in Melbourne with one year of experience, the median salary is $61000[1] with $54000 representing the top of the lower quartile of Australian salaries. That is, a salary of $54000 is more than 25% of salaries in Australia for this occupation.
[1] >
Mindful of the general nature of the estimates available, on the evidence, the tribunal is satisfied that the earnings, and therefore, the proposed terms and conditions of employment, for the nominee are no less favourable than the earnings and terms and conditions that are provided, or would be provided, to an Australian citizen or permanent resident for performing equivalent work at the same location; r.2.72(10)(c) is therefore satisfied.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the relevant instrument.
The TSMIT for the purposes of r.2.72(10)(cc) is $53,900: IMMI 13/028.
However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A). The ‘base rate of pay’ means the rate of pay payable to an employee for his or her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57. The meaning of ‘earnings’ is provided in r.2.57A.
Likewise, these requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 09/113: r.2.72(10)(AB). The annual earnings specified are AUD 250000.
Based on evidence discussed and findings above, and again being mindful of the general nature of the salary estimates available, the tribunal finds that the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the TSMIT, and r.2.72(10)(cc) is satisfied.
Requisite certification
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e). These include that:
a.the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in an instrument;
b.if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in an instrument;
c.if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in an instrument; and
d.the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in an instrument.
The tribunal accepts based on the material submitted by the applicant that it lawfully carries on a business in Australia. Each of the relevant required certifications has been made in the nomination application and the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
At hearing the tribunal advised that Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
At hearing the parties were informed that the nomination application was refused by the delegate as not meeting this requirement (despite the delegate’s use of r.2.72(10)(aa)) and this was the major issue that should be addressed by the parties at hearing and that would be decided by the tribunal.
The tribunal observed to the parties that one of the matters which the applicant has certified, and is required to certify, is that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in ANZSCO[2] or specified in an instrument.
[2] Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1
It was suggested that the “position” refers to the job and its tasks in the nominating business; while the “nominated occupation” refers to the occupation as described through its indicated tasks in ANZSCO.
It was suggested that a deliberation of this requirement requires a consideration of the need for the position in the business, and a comparison of the tasks and nature of the position and the tasks and nature of the nominated occupation as indicated by ANZSCO.
It was pointed out that in relation to the analogously worded visa criterion in cl.457.223(4)(d)(ii) the Court had recently indicated[3] that the following questions may be relevant:
a.What is the occupation that has been nominated in relation to the applicant?
b.How is the nominated occupation described in ANZSCO, and what are the tasks ANZSCO associates with the nominated occupation?
c.What are the tasks the applicant claims he or she has been employed or will be employed to perform?
d.Are the tasks the applicant claims he or she has been employed or will be employed to perform in that position tasks that are equivalent or substantially equivalent to the tasks associated with the nominated occupation, as specified by ANZSCO?
e.If (d) is answered in the affirmative, has the applicant in reality performed the tasks he or she has been engaged to perform, or will the applicant perform the tasks he or she will be engaged to perform?
[3] Khan v MIBP [2016] FCCA 333
The ANZSCO entry for the nominated occupation of Customer Service Manager (CSM) is as follows:
UNIT GROUP 1492 CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS

CALL OR CONTACT CENTRE AND CUSTOMER SERVICE MANAGERS organise and control the operations of call or contact centres, review customer services, and maintain sound customer relations.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided
oensuring operational efficiency within a call centre
oproviding direction and feedback to team members and assisting with recruitment
omanaging, motivating and developing staff providing customer services
oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided
oliaising with other organisational units, service agents and customers to identify and respond to customer expectations
omay work in a call centre

Occupations:
149211 Call or Contact Centre Manager
149212 Customer Service Manager

149211 CALL OR CONTACT CENTRE MANAGER

Organises and controls the operations of a call or contact centre. May work in a call centre.
Skill Level: 2

149212 CUSTOMER SERVICE MANAGER

Alternative Titles:
Client Service Manager
Service Manager

Plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
Skill Level: 2
The tribunal observed at hearing that the nominated occupation and its unit group exist within the Major Group of “Managers”:
MAJOR GROUP 1 MANAGERS

MANAGERS plan, organise, direct, control, coordinate and review the operations of government, commercial, agricultural, industrial, non-profit and other organisations, and departments.
Indicative Skill Level:
Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In New Zealand:
Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

NZ Register Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
a.setting the overall direction and objectives of organisations and departments within organisations
b.formulating, administering and reviewing policy and legislation to ensure organisational and departmental objectives are met
c.directing and coordinating the allocation of assets and resources
d.directing, controlling and coordinating the activities of organisations and departments, either personally or through senior subordinate staff
e.monitoring and evaluating overall organisational and departmental performance, and adjusting policies, rules and regulations to ensure objectives are met
f.representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility
At hearing, the tribunal pointed out to the parties that as the nominator was required to certify that the tasks of the position contain a significant majority of the tasks of the occupation indicated by ANZSCO, the indications given by ANZSCO were of relevance and importance in deciding if the position was genuine.
It was suggested that there are five ANZSCO-indicated tasks of a CSM (below), the other two tasks being related to another occupation: Call or Contact Centre Manager (ANZSCO 149211) in the same unit group:
a.developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided;
b.providing direction and feedback to team members and assisting with recruitment;
c.managing, motivating and developing staff providing customer services;
d.planning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided;
e.liaising with other organisational units, service agents and customers to identify and respond to customer expectations.
The issue on review

The tribunal indicated at hearing that the main issue on review was whether the position associated with the nominated occupation is genuine.
Findings
The general manager, Mr Mickelson, represented the company at hearing and gave frank and transparent evidence about the business and the position in a hearing lasting over 2 hours.
Based on that evidence and the written material provided, the tribunal finds:
a.The business was started in 2011 and initially sold lights, light fittings, globes and other related items via its website to mainly retail customers;
b.The business transitioned to servicing commercial clients in need of lighting solutions (architects, builders, interior designers etc);
c.Today 90% of customers are commercial clients with sophisticated lighting needs, 80% of customers are based in Australia, and annual turnover is around $1.9m;
d.A lighting showroom opened 9 months ago and is staffed by a sales team which includes interior designers;
e.The tasks of the position of CSM have been to date discharged by the nominee, the general manager, the showroom manager and other staff and the business intends to consolidate those tasks into the CSM position which supervises three service staff and has training and mentoring duties for the showroom team as well;
f.Customers of the business, in particular, commercial customers, expect to receive a high level of customer service both before and after purchase and the product is such that it would be expected that installation, merchantability, fitness for purpose, and other after-sales issues will arise;
g.As commercial customers may return to the business for lighting solutions over time, the tribunal accepts that the business is anxious to provide a high level of service to these customers with the aim of developing long term relationships and retaining long term business;
h.The CSM position will take in the following tasks, which the tribunal accepts are appropriate to the commercial customers of the business:
i.After sales service, including managing follow up contact with customers to gauge satisfaction;
ii.The writing and setting of policies and standards for customer service;
iii.Training and coaching staff with customer interaction to improve and enhance customer service, including by having staff focus groups and using case studies;
iv.Planning and implementing customer satisfaction reviews, including through the use of customer software platforms;
v.Participate in management meetings and strategies from a customer service standpoint;
vi.Oversee all aspects of customer service generally and the direct management, training and recruitment of three existing service staff, as well as several more in the future, and the indirect training and coaching of showroom sales staff and interior designers.
Based on the above findings, the tribunal is satisfied that the position is substantially equivalent to the ANZSCO definition of the nominated occupation and the position takes in a significant majority of the ANZSCO-indicated tasks as has been certified.
Therefore the position associated with the nominated occupation is genuine and r.2.72(10)(f) is met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in a relevant instrument.
The applicant has submitted a copy of the signed employment contract setting out the main terms and conditions of employment.
The requirements of r.2.72(10)(h) are met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
By IMMI 13/137 occupations at ANZSCO skill level 1 and 2 are specified for the purposes of s.140GBC(4).
The nominated occupation is at ANZSCO skill level 2.
The ANZSCO definition indicates that an incumbent of the occupation would normally be required to hold an AQF bachelor’s degree, advanced diploma or diploma, or at least three years of relevant experience.
The tribunal accepts as is indicated in the nomination application, that a relevant diploma is required for the position, and that therefore s.140GBC operates to render the applicant exempt from labour market testing.
For these reasons, the labour market testing requirements in s.140GBA are not applicable.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11), (12). In these circumstances, the nominated occupation must be specified in the work agreement as an occupation that the person may nominate. Certain matters relating to the tasks of the position and the qualifications and experience of the nominee must be certified as part of the nomination. In addition, if the work agreement specifies requirements that must be met by applicant, these must have been met.
The applicant is not a party to a work agreement, and for these reasons the requirements of r.2.72(11) and (12) are not applicable.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Adrian Ho
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2016] AATA 3800

27 April 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction